October 2014 Archives

News Scan

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Oregon High Court Upholds Death Sentence: The Oregon Supreme Court has upheld the death sentence for a woman convicted of murdering her 15-year-old daughter in 2009.  Peter Wong of the Portland Tribune reports that Angela McAnulty starved, abused, and tortured the young girl for several years which ultimately caused her death.  McAnulty is only the second woman to be sentenced to death in the state of Oregon. 

Convicted Killer Denied Parole: A Pennsylvania man convicted of murdering two young children in 1973 will remain behind bars after a judge denied his most recent appeal.  Rich Cholodofsky of Trib Live reports that John Veltre Jr. was 16-years-old when he was sentenced to life in prison after pleading guilty to killing two young children and raping their mother. Veltre was given a retrial in 1978 after a court ruled that his guilty plea was involuntary.  Later that year, a judge found him guilty for the second time and sentenced Veltre to two life terms and an additional 5-20 years for the rape.

Officer's Death Blamed on Immigration Policy:  The mother of an Arizona police officer killed last May in a traffic accident caused by an illegal alien driving drunk the wrong way on the highway, believes that President Obama's lax immigration policy contributed to her son's death.   Last July, CBS 5 in Mesa, AZ  reported that Mary Ann Mendoza had written the President asking him to enforce immigration laws, "The Federal Government knew he, Raul Silva Corona , was an illegal immigrant when he was convicted on crimes in 1994 in Colorado. The prosecutors were "lenient" on him and several charges were dismissed. When he was convicted of these crimes in 1994 and the government knew he was in the country illegally, why wasn't he deported? Why are any of these illegal criminals in this country?"   Mrs. Mendoza appeared on the OReilly Factor last night to report that she received no response from the President.  A story in today's Sacramento Bee by Stephen Magagnini and Phillip Reese reports a similar backlash after two Northern California police officers were killed last week by an illegal alien and habitual felon who had been deported twice.  The story cites "more moderate voices" who say that linking these killings to immigration policy is "simplistic and inaccurate."  Really?

Proposition 47

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California's wine country is not exactly conservative territory, to put it mildly.  Napa County went 2-1 for Obama over Romney.  But the St. Helena Star has a scathing editorial on the "defining criminality down" initiative, Proposition 47:

Carrying a stolen handgun. Possession of a date-rape drug. Carrying stolen credit cards. Financial elder abuse.

If these sound like minor, misdemeanor-level offenses to you, then you'll be interested in voting for Proposition 47.

But if they strike you as being the serious felonies that they are, then vote no on Prop. 47.

In an Orwellian touch, supporters -- who include billionaire liberal financier George Soros -- have dubbed the atrociously written proposition the "Safe Neighborhoods and Schools Act," based on the notion that the money saved by not incarcerating so-called "non-serious" criminals will be used for positive social programs.

The problem, as Napa County District Attorney Gary Lieberstein cogently explained to the Star's editorial board, is the proposition's definition of "non-serious." It's hard to imagine a rational person who would consider the drug and property crimes mentioned above to be "non-serious," but that's exactly how they would be treated if Prop. 47 passes.
However, the Field Poll indicates it is highly likely to pass.

Political Bias in Psychology?

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In the latest issue of the New Yorker, Maria Konnikova has a story that asks, is the field of psychology politically biased?  As the popular saying goes, to ask the question is to answer it.  Anyone who has spent any time within the field of psychology knows, if they're being honest, that the answer to that question is an emphatic "yes" all around.  But what is the nature of the bias? 

News Scan

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Convicted Murderer Denied Appeal: A Florida man convicted of murder at the age of 17 and sentenced to life in prison has had his most recent appeal denied by the state's Court of Appeals.  Jacob Carpenter of the Naples Daily News reports that 33-year-old Mazer Jean was convicted of second-degree murder and sentenced to life without parole (LWOP) for the brutal killing of a juvenile justice counselor working at an outdoor camp.  Jean claimed his sentence should be reduced because of the 2012 U.S. Supreme Court decision in Miller v. Alabama, which held automatic life sentences for juveniles unconstitutional.  The state appellate court ruled that Miller didn't apply because Jean was convicted of second-degree murder,  which does to carry mandatory LWOP.

Ohio Supreme Court Upholds Death Sentence: The Ohio Supreme Court has upheld the conviction and death sentence of a man who murdered a police officer in 2008.  Ed Meyer of the Akron Beacon Journal reports that 30-year-old Ashford Thompson shot the officer four times in the head at close range after he was stopped for playing loud music in his car late at night.  The court was unanimous in upholding the murder conviction, but was split 4-3 in favor of upholding the death sentence.  

Voting Scandal in Maryland Uncovered: An election watchdog group is suing the state of Maryland after discovering thousands of incidents of fraudulent voting by non-U.S. citizens.  Bryan Preston of PJ Media reports that the Virginia Voters Alliance compared how voters in one county filled out jury duty statements to their voting records and discovered that thousands of people who said they were not U.S. citizens on jury duty forms later went on to cast votes in elections. The group also found that roughly 40,000 people are registered to vote in both Virginia and Maryland.  Non-citizens are prohibited from voting in all state and federal elections.

Election Notes

Over at 538, Nate Silver and crew now calculate that the Republican chances of a Senate majority are over 2 to 1, the first time they have crossed that threshold.  The 538 forecasts have been among the most favorable to the Democrats.  At the WaPo's Monkey Cage, it's 93%.  Looks good for "Goodbye, Chairman Leahy, hello Chairman Grassley."

Update:  Larry Sabato et al. weigh in along the same lines.  "While many races remain close, it's just getting harder and harder to envision a plausible path for the Democrats to retain control of the Senate."  They note a "decent chance" that a runoff election in Louisiana or Georgia may actually provide the magic 51st seat, not the election next Tuesday.

In Colorado, the Quinnipiac Poll has Bob Beauprez up by 5% over incumbent Gov. John Hickenlooper.  The 538 folks rate Quinnipiac fairly highly at a B+.  They also calculate a "house effect" of +1%R, so let's say Beauprez is really up 4%.  That is still a shade above the 3.4% confidence interval.  See this post for why I'm particularly interested in this one.

Update 2:  The Denver Post and Survey USA have the Colorado governor's race a dead heat, with the caveat that this is Colorado's first all-mail-in election, so pollsters really have no $%*&^* idea.  Okay, I paraphrased that last part a bit.
We have been informed that California Attorney General Kamala Harris has chosen Gerald Engler as the Chief Assistant Attorney General for the Criminal Division, succeeding Dane Gillette (retired).

Outstanding choice.

Federalist Society Convention

The annual National Lawyers Convention of the Federalist Society is November 13-15 at (as always) the Mayflower Hotel in Washington.  The FedSoc website has the highlights and the full schedule.

Justice Scalia will deliver the opening address.  Justice Alito will speak at the black-tie dinner. 

The annual Rosenkranz debate will be on collection of phone records and the Fourth Amendment with former Attorney General Michael Mukasey against former ACLU President Nadine Strossen.

Mr. Mukasey will also be on the panel put on by the Criminal Law Practice Group (of which I am a executive committee member and former chairman).  He will be partnered with the notorious Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center (and sometime blogger).  John Malcolm of Heritage Foundation and Marc Levin from Texas Public Policy Foundation are also on the panel, with Judge William Pryor moderating.

The Civil Rights Practice Group's panel also has a criminal-law related theme, sexual assault on campus, and unfortunately it is scheduled at the same time.  I would especially like to hear Heather MacDonald.  (Pardon me if I duck out, Bill.)

Former Senator and D.C. Circuit Judge James Buckley will close out the event.

Memo to burglars:  My home will be occupied in my absence, and the occupants are armed.

News Scan

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Cold-Case Murder Suspect Found Guilty: An Ohio man named as the prime suspect in a 1990 cold-case rape and murder has been found guilty of the crime and sentenced to life in prison.  WLWT News reports that 57-year-old Timothy Sellers was linked to the murder through DNA evidence in 2002, but a series of errors prevented police from launching a full investigation until 2010.  Sellers will have a chance at being paroled after serving 20 years behind bars.

OK Sets Execution Date for Convicted Killer: An Oklahoma man sentenced to death for the murder of  a 9-month-old baby in 2002 is scheduled to be executed March 5, 2015.  Glenn Puit of CNHI News Service reports that Robert Cole Jr. told authorities that he killed his infant daughter because her crying was interrupting his video game playing.  The coroner revealed that the infant's back was broken and her heart ruptured after Cole intentionally bent the child backwards and in half.  Cole has exhausted all of his appeals and a request for a stay of execution has yet to be filed. 

Convicted Murderer Arrested by Border Patrol: Border Patrol agents in Texas have arrested a convicted murderer who had entered the U.S. illegally after being deported in 2009.  Kristin Tate of Breitbart reports that Francisco Rodriguez-Garcia was convicted of second-degree murder in North Carolina in 1997, he served 12 years for the killing and was deported immediately following his release.  So far in 2014, Border Patrol agents have arrested dozens of convicted felons who have entered the U.S. illegally after being deported.

Yet? What's With the Yet?

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Rocco Parascandola and Thomas Tracy have this story in the New York Daily News:

Arrests for minor crimes across the city have skyrocketed over the last three decades, a report conducted by John Jay College of Criminal Justice shows.

"Crime is down to historic lows," John Jay President Jeremy Travis said about the study. "Felony arrests have dropped in half, yet the rate of misdemeanor arrests has tripled."
Yet?  Would anyone say, "Major house fires have dropped sharply in newly constructed housing, yet building codes now require sprinkler systems."

It's speculated that many of the arrests are a product of the broken windows theory to policing, which was first mentioned in 1982.
That wins the Well, Duh! Award for the day.  Speculated?

Thomas Reppetto, a NYPD historian, said "broken windows" was "designed for a different era," when drug dealers controlled neighborhoods and violent crime was rampant.
It is indeed a different era, and "broken windows" policing is a major part of why.

SCOTUS Stays Missouri Execution

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Last night the U.S. Supreme Court acted on two petitions from Missouri rapist and triple murderer Mark Christeson.  See description of the crime here.  There is no doubt about the justice in this case.  Guilt is conclusively proved by DNA, and the crime clearly warrants the penalty.  The Court is apparently satisfied that the lawyers purporting to represent Christeson actually do.  See prior post here.

In Supreme Court case 14-6878, the Supreme Court denied review of Eighth Circuit case 14-2220.  That case has to do with disclosure and compounded pentobarbital.

In Supreme Court case 14-6873, the Supreme Court granted a stay to allow it to decide whether to review Christeson's habeas petition, denied as untimely by the district court.  The Eighth Circuit denied a stay in case 14-3389. 

This case presents issues of representation of prisoners.  The Supreme Court opened a can of worms in its Martinez and Trevino decisions when it said that ineffectiveness of state collateral review counsel can be "good cause" for a federal court to consider a claim defaulted in state court.  If the same lawyer represents the prisoner in both proceedings, can he be expected to argue his own ineffectiveness?  But how many new lawyers are we going to appoint for one defendant?  We already say that trial counsel can't continue into habeas for this reason.  Is every defendant going to get another new lawyer for federal habeas, and will justice be delayed and denied in every capital case while that lawyer gets up to speed?  That could be some time, given how complex capital cases can be.

Note that this problem is not entirely limited to capital cases.  Martinez was not a capital case.  The problem of justice being delayed while the case is litigated is limited to capital cases, but the underlying conflict issues are not.

The Christeson case involves the related issue of appointed counsel missing the deadline to file the federal habeas petition, as distinguished from the state-court procedural defaults in Martinez and Trevino.
Kimberly Kindy reports in the WaPo:

A forensic pathologist quoted in a St. Louis Post-Dispatch story about the shooting death of Michael Brown said some of her statements concerning the autopsy were taken out of context.

Judy Melinek was quoted about the volatile case in which Brown -- black, 18 and unarmed -- was fatally shot Aug. 9 by Darren Wilson, a white Ferguson, Mo., police officer.

Last week's Post-Dispatch report, which focused on St. Louis County's official autopsy of Brown and an accompanying toxicology report, relied on unidentified sources with knowledge of the county's investigation of the shooting, leaked autopsy documents, and quotes from Melinek and others. The Post-Dispatch has said it stands by its reporting, including Melinek's comments.

But Melinek said she did not assert that a gunshot wound on Brown's hand definitively showed that he was reaching for Wilson's gun during a struggle while the officer was in a police SUV and Brown was standing at the driver's widow, as the Post-Dispatch reported.

"He sat in a room, and he lied to me"

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In practical terms, the most important outcome for the cause of justice next week is control of the U.S. Senate, but in terms of "just deserts," the outcome I most want to see is for the people of Colorado to toss their profoundly dishonest Governor John Hickenlooper out on his ear.  Dennis O'Connor, whose 17-year-old daughter was one of four people murdered by Nathan Dunlap, explains why in this 30-second ad now being run on television by the Republican Governors Association.

A longer version for the internet is here.

Guy Benson has this article at Town Hall.

Texas Execution

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AP reports:

The U.S. Supreme Court denied the last-chance appeal of a former gang member scheduled for execution Tuesday evening after his defense attorneys argued that the man, who was convicted of killing three rivals 14 years ago in San Antonio, is mentally impaired.
The court denied a stay for Miguel Paredes in a brief order released Tuesday. Paredes, 32, was convicted along with two other men in the September 2000 shooting deaths of three people with ties to the Mexican Mafia. The victims' bodies were rolled up in a carpet, driven about 50 miles southwest, dumped and set on fire. A farmer investigating a grass fire found the remains.
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Paredes' attorney, David Dow, said the execution should be stopped because Paredes had "a significant mental disease" that may have affected his judgment when he told his previous lawyer 10 years ago not to investigate his family background. Dow also told the Supreme Court that Paredes' previous lawyer was deficient for not investigating the inmate's medical history.

In a response filed Tuesday morning, state lawyers said Paredes "presented no evidence that he is or ever has been mentally ill or incompetent," and that his earlier attorney couldn't be considered deficient when he "abided by Paredes' explicit instructions." Lower courts have sided with the state, which also noted that the latest appeal was filed after a deadline.
Unfortunately, the news story does not say what this "significant mental disease" is.  Update:  The Fifth Circuit's opinion indicates it is Dysthymic Disorder, which is kind of junior varsity depression.  Sorry, that is nowhere near severe enough to warrant reopening proceedings at this late stage.

Justice Breyer was recused from the case.  No dissent is noted.

Update 2:  Michael Graczyk reports for AP that the execution has been completed.

Another Unauthorized Filing?

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Here we go again.  Mark Christeson has a well deserved date with the Missouri execution team tomorrow.  See description of the crime here.  The usual last minute applications have been filed with the Supreme Court, but do the lawyers filing them really represent Christeson?  Justice Alito, the assigned Circuit Justice for the Eighth Circuit, including Missouri, wants to know.

See this post regarding the Ballard case in Pennsylvania last August.

News Scan

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Convicted Felons Arrested for Child's Murder: Police in Florida have arrested the two men they believe to be responsible for this month's drive by killing of a five-year-old boy.  Barry Miller of Fox 4 reports that the two men, both convicted felons, have been booked into jail dozens of times for crimes such as homicide, being a felon in possession of a handgun, battery of a law enforcement officer, and vehicle theft.  Both men have been charged with second degree murder.

Inmates set to be Executed in Texas, Missouri: Two U.S. death row inmates, one in Texas and the other in Missouri, are set to be executed within the next 24 hours.  Jon Herskovitz of Reuters reports that the Texas inmate, 32-year-old Miguel Paredes, was convicted in 2000 of murdering three people and is scheduled to be executed Tuesday evening.  The Missouri inmate, 35-year-old Mark Christeson, was convicted of killing a woman and her two children nearly two decades ago, he is scheduled to die by lethal injection early Wednesday morning.

Convicted Cop Killer Sentenced to Life: A Florida man convicted of murdering an off-duty police officer in 2008 has been sentenced to life in prison for his crime.  Andrea Torres of Local 10 News reports that 28-year-old Andrew Rolle shot the officer after mistakenly identifying him as a rival gang member.  Rolle was already serving a 50-year prison sentence after being found guilty in two separate armed robberies.

Yes, Voter Fraud Is Real

Hans von Spakovsky has this op-ed in the WSJ:

In the past few months, a former police chief in Pennsylvania pleaded guilty to voter fraud in a town-council election. That fraud had flipped the outcome of a primary election. Former Connecticut legislator Christina Ayala has been indicted on 19 charges of voter fraud, including voting in districts where she didn't reside. (She hasn't entered a plea.) A Mississippi grand jury indicted seven individuals for voter fraud in the 2013 Hattiesburg mayoral contest, which featured voting by ineligible felons and impersonation fraud. A woman in Polk County, Tenn., was indicted on a charge of vote-buying--a practice that the local district attorney said had too long "been accepted as part of life" there.

News Scan

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Accused Cop Killer Had Been Deported Twice: Federal immigration authorities report that the man believed to be responsible for last week's crime spree in Northern California that left two police officers dead and another wounded was in the U.S. illegally, and had been deported back to Mexico twice before.   Andreas Preuss and Michael Martinez of CNN report that 34-year-old Marcelo Marquez and his wife led police on an hours-long chase through Sacramento and the Sierra foothills Friday afternoon.  When arrested in Auburn, in addition to murdering the  two police officers and wounding a third, they had attempted three separate carjackings, and shot a civilian in the head.  Marquez had been deported from the U.S. in 1997 after a narcotics conviction and was deported again just four years later.  Marquez and his wife are currently being held in county jail without bond. 

Convicted Killer Denied Clemency:   An Oklahoma man convicted of murdering his boss more than a decade ago has been denied clemency by the state's Pardon and Parole Board.  Graham Lee Brewer of The Oklahoman reports that 51-year-old Richard Glossip feared that he was going to be fired from his job and devised a plan to have the owner of the hotel he worked at killed.   He enlisted the help of the hotel's maintenance man who ultimately killed the owner and testified against Glossip in exchange for a sentence of life without parole.  Glossip is scheduled to be executed on January 29, 2015.

DUI Driver that Killed Teen had Suspended License: The California man believed to be responsible for killing a teen in this weekend's chain-reaction DUI crash in Santa Ana was driving on a suspended license because of a prior DUI conviction.  Tracy Bloom and Lynette Romero of KTLA News reports that 23-year-old Herbert Calderon ran a red light Saturday evening and caused a three-car crash that left five people injured and a popular high school student dead.  Calderon is facing charges of vehicular manslaughter and DUI and is currently being held in county jail without bond.  

Unexplained Orders

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Adam Liptak has this column in the NYT:

People used to complain that Supreme Court decisions were too long and tangled. Those were the days.

In recent weeks, the court has addressed cases on the great issues of the day without favoring the nation with even a whisper of explanation. In terse orders, the court expanded the availability of same-sex marriage, let a dozen abortion clinics in Texas reopen, and made it harder to vote in three states and easier in one.

Judges and lawyers who used to have to try to make sense of endless, opaque opinions now have to divine what the Supreme Court's silence means.
The orders in question are temporary.  Eventually, we can expect, the issues in these cases, and possibly the cases themselves, will be decided by the Supreme Court in full-length opinions.  Yet temporary orders can have very long-lasting effects. 
One of the major themes of abolitionism is that because the death penalty unavoidably risks killing the innocent  --  and that sooner or later this is bound to happen  --  it must end.

The premise is right.  The conclusion is wrong.  It rests on the tacit view that the government's killing the innocent is an unacceptable price to pay, no matter how just the cause otherwise might be.

There are two problems.  One is that this view is false.  The other is that, not unrelatedly, almost no one believes it.

This was brought home to me graphically this weekend, when I read this article in the New York Review of Books.  As a nation, we killed thousands of innocents because, though it was a mind-bending moral price, it was worth it, given the stakes.

Monica Still Yacking, WaPo Still Spinning

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Kent wrote this post about how the Washington Post (WaPo) published a blatantly biased story about this week's Gallup poll  --  the one that shows continuing overwhelming public support for the death penalty.

I was peaceably eating lunch today when I saw this WaPo story about how Monica Lewinsky was "mistreated" by the FBI when they first interviewed her. The story starts:

When onetime White House intern Monica S. Lewinsky broke her silence with a major speech this week, one subject brought her nearly to tears.

Lewinsky's voice cracked as she recalled the moment in January 1998 when she was first confronted by FBI agents and lawyers working for Kenneth W. Starr's Office of Independent Counsel, who threatened her and her mother with criminal prosecution if she did not agree to wear a wire against President Bill Clinton.

Lewinsky, now 41, has long felt that she was mistreated by authorities in the 12-hour marathon session, which began as an ambush at the food court at the Pentagon City mall and then moved to a hotel room at the mall's adjoining Ritz-Carlton hotel.

Sounds  pretty bad, right?  I mean, this behavior has to be a gross violation of Ms. Lewinsky's constitutional rights.

Well, ummmmm.......

Scratch One From the AG Short List

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Carol Lee reports in the WSJ:

Former White House counsel Kathryn Ruemmler has withdrawn her name from consideration as President Barack Obama 's nominee for attorney general, a White House official said Friday.

Mr. Obama had asked Ms. Ruemmler to consider succeeding Eric Holder, who announced last month he would step down as attorney general when a replacement is confirmed. But Ms. Ruemmler, who was at the center of every legal decision made by the White House in Mr. Obama's second term, concluded her closeness with the president would make Senate confirmation difficult and create a bitter partisan fight, the White House official said.

Ms. Ruemmler spoke directly with Mr. Obama on Wednesday to inform him of her decision, after speaking earlier in the week with senior White House officials about her concerns, a person familiar with the discussions said.

Mr. Obama is expected to name a nominee after the Nov. 4 election.

Other potential picks for the attorney general post include Solicitor General Donald Verrilli, Labor Secretary Tom Perez and Brooklyn U.S. Attorney Loretta Lynch.

Of course, if the President actually wants a "bitter partisan fight," he can nominate Perez.  I don't know why he would, but why else is he waiting until after the election?

Wouldn't it be a nice boost to Democratic candidates in close Senate races if the President nominated a solid, accomplished person, highly respected across the board in the law enforcement community?  Sure, the candidates could stand up proudly before the swing voters and say "yes, that's the kind of nominee I will gladly support."  If that were the kind of person he wanted to nominate, he would have done so already.

News Scan

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Convicted Sex Offender Accused of Rape: Authorities in Texas have arrested a convicted sex offender who is accused of raping two young girls and infecting them with HIV and other sexually transmitted diseases.  Mike Glenn of the Houston Chronicle reports that 33-year-old David Wilson is believed to have sexually assaulted his niece, who was just under 2-years-old at the time, and his ex-girlfriend's 14-year-old daughter.  Wilson was sentenced to four years in prison in 2004 after being found guilty of sexually assaulting another 14-year-old girl, he is currently being held in county jail without bond.

Parolee Charged in Cold Case Killing: An Illinois parolee with a lengthy criminal past has been charged with first-degree murder for a 2002 cold case killing.  Fox Chicago reports that 40-year-old Steven Podkulski was paroled on Wednesday after serving just five years of a 10-year sentence for a burglary conviction, police arrested him for the murder immediately after he was released from custody.  Podkulski is currently in county jail facing one count of first-degree murder and is being held on a $3 million bond.

Convicted Felon Shoots at CA Police Officer: A California man is behind bars and facing a possible life sentence after shooting at a police officer earlier this week.  Andrea Castillo of the Fresno Bee reports that 34-year-old Patrick Hall, who already has two prior felony 'strikes' against him, fired his gun while the officer held onto the barrel during an arrest attempt, the officer was taken to the hospital and is recovering after sustaining a severe burn to the palm of his hand.  If convicted, this will be Hall's third felony strike and he will face a possible life sentence.

FedSoc Event on Prop. 47

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The Federalist Society has a debate Monday evening in San Francisco on the "defining criminality down" ballot measure, Proposition 47.  SF Public Defender Jeff Adachi will speak for the measure, and San Mateo DA Steve Wagstaffe will speak against it.  Announcement is here.

More on the Gallup Death Penalty Poll

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Yesterday we noted on this blog that the Gallup Poll found little change in Americans' views on the death penalty.  Well, "little change" isn't news.  It's dog bites man.  So Mark Berman in the WaPo has this story emphasizing the supposedly "botched" executions, plural, in the last year, and implying a sense of wonderment that this didn't change anything.  (Only one actually qualifies as "botched," IMHO.)

Well, why should it?  Do we change our views on any major issue because of isolated problems?  Do air bag recalls make us stop driving cars?  The problems with lethal injection are, for the most part, caused by the opponents of capital punishment, and our response should be to fix the problems, not to abandon a punishment that the vast majority of the American people believe to be the fundamentally right one for the worst murders.

Far worse than this, though, is a link at the bottom of the page, which takes the reader to a May 1 article titled "Everything you need to know about executions in the United States."  I hadn't seen this before.  Turns out that "everything" is the anti-death-penalty crowd's talking points straight down the line.  One misleading half-truth after another. Seriously, if anti-DP propagandist Richard Dieter had written this article himself, this is pretty much how he would write it.  Dieter is quoted twice in the article, without identifying him as an advocate for one side.  Ditto Denno.

It is disappointing to see such shamelessly one-sided coverage in the WaPo, which has generally been more balanced than certain other major newspapers.

Debating the Death Penalty

Kent noted that it's next to impossible to change someone's mind about the death penalty, because the most basic and controlling views are dug deeper than the place argument can reach.

I've had much that same experience.  In all the time I've been thinking about this issue, I have changed only two minds.  One belonged to my mother-in-law, a pretty much down the line liberal, but with an independent streak (she ran away from home as a teenager to join the Israeli army in its earliest days.  She was an ambulance driver on the battlefield).

She held the conventional wisdom in Upper East Side Manhattan, where she lived. We got to talking one day about capital punishment, and I brought up the question what we're supposed to do with a previously convicted, angry and unrepentant multiple killer serving LWOP, who then does it again in prison, and vows this won't be his last.

That stumped her.  (She's not the only one, of course).  So she came around.

She was very into Jewish causes (the Holocaust Museum among them).  I'm sure she knew that Israel had kidnapped and executed Adolph Eichmann, and thought that was the right thing to do.  I believe that set the stage for her having the sort of open mind that, while rare, is the essential precondition for coming around. 
Earlier today, I noted Gallup's most recent poll on people's attitudes on the death penalty.  That post was updated later with some further data.

Structured questions in polls can give useful numbers, but open-ended questions can tell us some interesting things also.  Art Swift of Gallup reported separately on an open-ended question that asked people for the reason behind their position on the main question.
I was intending to make my next entry about the danger our country faces from the kind of murderous episode we saw yesterday in Ottawa, when this comic relief piece in the ABA Law Journal caught me eye.  The title is, "Judge Accused of Courthouse Sex Was 'Seduced and Taken Advantage Of,' Her Lawyer Says." It states (emphasis added):

A West Virginia judge accused of a sexual relationship with a community corrections director was "seduced and taken advantage of," her lawyer argued in her ethics case before the state supreme court.


[Jaymie] Wilfong, a Randolph County circuit judge, had a two-year romantic relationship with North Central Community Corrections Director William Travis Carter that included in-chambers trysts between court proceedings...

Deitzler [her defense attorney at ethics proceedings] told the state supreme court there were only two instances of sexual conduct at the courthouse, and the affair didn't affect the judge's impartiality. He also said the judge was seduced.

"I'm not using it as an excuse," Deitzler said. "The perception unquestionably is she was seduced and taken advantage of."

You have to love the, er, creativity of an attorney who says, "I'm not using it as an excuse," and then, a full ten words later, says she was "taken advantage of."

News Scan

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Teen Convicted in Brutal Double-Murder: A Colorado teen convicted of murdering a soldier and his pregnant wife has been sentenced to two back-to-back life sentences.  KRDO News reports that Mayco January, who was 17-years-old at the time of the murders, killed the couple after they walked in on him burglarizing their home.  January will be eligible for parole after serving a minimum of 80 years behind bars.  Under Colorado law, January was not subject to a third murder charge for killing the unborn child.

Prosecutors to Seek Death Penalty for Accused Killer: Prosecutors in Kentucky have announced plans to seek the death penalty for a man accused in a brutal kidnapping and murder.  WLKY News reports that 24-year-old Octavio Correa and a female companion kidnapped a man from his home earlier this year, shot him in the head, and left his body in the trunk of his car.  Co-defendant Tiffany Hodges is also in custody for the murder, but prosecutors have yet to announce whether they will pursue a possible death sentence for her as well.   

Convicted Killer Sentenced to Life in Prison Plus 202 Years: A Michigan man has been sentenced to life in prison plus an additional 202 years after being found guilty of raping three women and killing a fourth woman who tried to intervene.  Heidi Fenton of M Live reports that Duncan Willis broke into the home of one of the victim's under the false assumption that she had called Child Protective Services on him earlier that week. Willis proceeded to rape that woman along with two others over a 10-hour period until a fourth woman showed up and intervened.  The judge presiding over the case called this crime the 'most heinous cowardly act' he had ever heard of, and commented that the sentence handed down would ensure that Willis would remain behind bars for the rest of his life. 

Michael Brown Autopsy Report

Christine Byers reports for the St. Louis Post-Dispatch:

The official autopsy on Michael Brown shows that he was shot in the hand at close range, according to an analysis of the findings by two experts not involved directly in the case.
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Gallup has this report by Jeffrey Jones, with the above headline, on its last poll on the death penalty.

On the standard question, asked since the 30s and best used for trends over time, support is 63%, about where it's been for the last decade.  There is a strong difference by political party, but even among Democrats, the "yes" vote is a plurality, just shy of a majority.

On the very badly worded question that effectively asks people to specify a single punishment for all murders regardless of degree or circumstances, respondents chose the death penalty over life without parole by 50-45.  This is up in the last few years.  The LWOP choice was briefly a tick ahead, 48-47, in 2006.

The actual public policy question to be decided -- what punishment to impose on the very worst murderers -- was once again not asked.

My criticisms of poll wording on this topic are noted in this post last February.

Update:  Not mentioned in the report linked above, but found in the linked data report, is a better question, "In your opinion, is the death penalty imposed -- [ROTATED: too often, about the right amount, or not often enough]?"  This question is better because, unlike the other two, it at least partially addresses the fact that were are talking about a (small) subset of murders, not all murders.  The result is 40% Not Enough, 28% About Right, 24% Too Often, and 9% No Opinion. 

Support for capital punishment in its present scope or tougher is the sum of Not Enough and About Right, which comes to 68%.  That's down somewhat from the historical average ("only" 2/3, rather than 3/4), but it still swamps the Too Often vote by well over 2-to-1.
Kimberly Kindy and Sari Horwitz have this article in the WaPo with the above headline:

Ferguson, Mo., police officer Darren Wilson and Michael Brown fought for control of the officer's gun, and Wilson fatally shot the unarmed teenager after he moved toward the officer as they faced off in the street, according to interviews, news accounts and the full report of the St. Louis County autopsy of Brown's body.

Because Wilson is white and Brown was black, the case has ignited intense debate over how police interact with African American men. But more than a half-dozen unnamed black witnesses have provided testimony to a St. Louis County grand jury that largely supports Wilson's account of events of Aug. 9, according to several people familiar with the investigation who spoke with The Washington Post.

News Scan

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Cop Killer Sentenced to Life Without Parole: A California man convicted of killing a police officer nearly a decade ago has been re-sentenced to life without parole (LWOP).  Gary Peterson of the Contra Costa Times reports that this is the third time in six years that Andrew Moffett has been sentenced to LWOP  for the killing, which he committed when he was a few days shy of his 18th birthday.  The state Supreme Court ordered the re-sentencing earlier this year after modifying the interpretation of the state's sentencing law for under-18 murderers and then upholding the law, as modified, as consistent with the U.S. Supreme Court's 2012 decision in Miller v. Alabama.  CJLF filed a brief in the case on behalf of Officer Lasater's family.

Rapist to Spend Over 100 Years Behind Bars: An Arizona man convicted of nearly a dozen sexual assaults has been sentenced to more than 113 years in prison.  The Associated Press reports that 23-year-old Gregory Woody Jr. was found guilty of multiple felonies including aggravated sexual assault and kidnapping.  Police say he raped, beat, and choked two women last year, and DNA was finally able to link him to the crimes.

Supreme Court to Hear CA Death Penalty Case: The U.S. Supreme Court has agreed to hear California's appeal of the decades-old death sentence given Hector Ayala for the murders of three people in 1985.  Deb Welsh of KPBS reports that Ayala's original death sentence was vacated after a the U.S. Ninth Circuit Court of Appeals court ruled that he was denied a fair trial. California has not carried out an execution since 2006 and currently has 745 inmates on death row.   Oral argument in the case will be held this winter.

Modifying Opinions

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Nobody is perfect, and even the nation's highest courts sometimes make mistakes in their opinions.  When the California Supreme Court makes a mistake and needs to modify an opinion, it issues a modification order like this.

Not so at the U.S. Supreme Court.  Opinions come out in four forms.  There is the bench opinion used to announce the decision live in court.  That one has a shorter life span than a fruit fly.  Almost immediately we get the slip opinion.  That one is posted on the Court's website, and it is the one we link to on this blog for same-day commentary. 

After the slip opinion, unofficial versions are printed by the West Publishing Company (S.Ct.) and Lexis Law Publishing (L.Ed.2d), but the Court is not involved in these.

The slip opinion remains the official opinion until publication of the preliminary print, currently running about four years after the opinion date.  Why so long?  Beats me.  After another year or so we get the bound volume, which will be the final, official word on the shelf of the law library forevermore.  The BVs are also available in PDF form on Court's website, with the caveat that the dead-tree version and not the digital one is official, if there is any difference.

Sometimes there are changes between these versions, but there is generally not a public announcement.  Adam Liptak reports at the NYT:

Earth to Academia Re: Jones Certiorari Denial

The defense bar is hopping mad about the denial of cert in the Jones case.  There, the Court declined to hear a challenge to the use of acquitted conduct in fashioning the sentence.  Kent discussed it here, and I did here.

There has been a good deal of fussing about it, as you might expect.  There have also been guesses galore about why the Court denied review.  The most remarkable I have seen is this one by University of Illinois law Professor Margareth Etienne (quoted in the National Journal):

Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved.

With all respect to Prof. Etienne, a Yale Law graduate, her analysis is wildly and transparently incorrect.

News Scan

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Delaware Sets Execution Date for Murderer: A Delaware man convicted of raping and murdering a college student in 2005 is set to be executed for his crime December 4, 2014.  The Associated Press reports that 43-year-old James Cooke had his original conviction overturned in 2007 due to an error made by his public defender, he was then re-tried, convicted and sentenced to death again in 2012.  Cooke's most recent appeal to the state Supreme Court was denied in July 2014.

Teen Sentenced to Life in Prison: A Florida teen convicted of killing a security guard at an apartment complex in 2012 has been sentenced to life in prison with a possibility of parole.  WFTV News reports that Terrance Anthony was 16-years-old when he shot and killed the security officer.  Police reported that the victim had previously confronted Anthony because the teen did not live at the complex.  Anthony will be eligible for parole after his case is reviewed by a judge in 25 years.    

Murderer Challenges Prison Porn Ban: A Connecticut man convicted of murder and sentenced to more than 50 years behind bars is suing the state for his right to look at pornography in prison.  Pat Eaton-Robb of the Associated Press reports that 44-year-old Dwight Pink Jr. claims that the porn ban violates his constitutional rights, and that guards are using it as a way to deny him access to an art book that uses nude models to teach readers how to 'draw the human form.' The state maintains that Pink has not been harmed by the ban and that none of his rights have been violated.

Eric Holder's Biggest Regret

Attorney General Holder was asked in a CNN interview what his biggest regret was looking back at his tenure in office.  John Hinderaker has this take on it:

Holder was asked by the interviewer, what was your biggest failure as Attorney General? He had so many to choose from! Politicizing the Justice Department, Fast and Furious, stonewalling the House of Representatives, allowing the legalization of marijuana contrary to federal law, failure to enforce the immigration laws, and lots more. But naturally, Holder didn't mention any of those failures.

Mr. Holder's answer was that his biggest regret was the failure to pass gun control (which he calls "gun safety") legislation.

The answer is incoherent on four levels.  First, someone should tell him the Justice Department doesn't pass legislation.  Second, if it did, further restrictions on civil rights (specifically Second Amendment rights) would be a poor idea.  Third, if such legislation were so desirable, it could have been passed (by Congress, that is) when Mr. Holder's party held super-majorities during his first two years in office. Fourth, the failure to secure gun legislation is nowhere near his biggest failure.

Other than that...............................

School Discipline and Criminal Law

Gary Fields and John Emshwiller have this article in the WSJ on the overuse of police arrest and the juvenile justice system to deal with misbehavior that should be addressed with school discipline.

This article makes some very valid points, but it is disappointing in its failure to fully explore why the use of traditional school discipline has declined, and at one point it goes completely off the rails:

In recent decades, a new philosophy in law enforcement had been applied to schools. It was "deal with the small stuff so they won't go to the big stuff, and also it sent a strong message of deterrence," said James Alan Fox, the Lipman Professor of criminology at Boston's Northeastern University.

The zero-tolerance approach started as part of the 1994 Gun-Free Schools Act, Mr. Fox said, but it expanded to other weapons, then to drug contraband and "finally into ordinary violations of school rules, disrespect, skipping. It eventually became an across the board response to discipline."
Fox is seriously trying to equate "broken windows policing" with "zero tolerance" nonsense?  The two are nearly diametric opposites.

But the primary emphasis here should be understanding why traditional school discipline has declined and fixing it.  School administrators just don't want to punish misbehaving kids like they used to.  When they do punish, their instrument of choice is suspension, exactly the wrong thing to do with a kid who doesn't want to be in school anyway.  Suspension has gotten so absurd that some schools suspend kindergarteners.  What are these people thinking?

Ferguson, from Tragedy to Farce

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Rich Lowry of National Review Online takes a look at Ferguson, Mo., as that unfortunate town becomes a staging ground for increasingly exotic protests. Here's a sample:

It wasn't so long ago that Ferguson, Mo., was supposed to be an American morality tale of racism, the militarization of police, and all manner of other evil. For a few weeks in August, the attention of the national media focused on the suburb of St. Louis, and MSNBC practically broadcast nothing else. President Barack Obama even mentioned Ferguson at a U.N. speech in the context of terror groups that behead people and sectarian conflicts that kill hundreds of thousands of people.

While the media long ago moved on, the protests have persisted, entering their late, decadent phase of self-indulgent triviality. Cornel West got arrested last week, and Al Sharpton is heading back to Ferguson at the end of the month to pump up attention for what styles itself a movement, although it is more tinny by the day.


In nearby St. Louis [recently], an off-duty cop working as a private security guard shot to death a teen who had fired at him with a Ruger 9mm. It turned out the gun had been stolen two weeks earlier, and the teen, monitored with an ankle bracelet, had been awaiting trial on a felony concealed-weapon charge. This event was nonetheless filtered through the lens of Ferguson. Protesters took the streets to demonstrate against what would strike most people as a legitimate act of self-defense, chanting the inapt "Hands up, don't shoot!"

Ten Questions for the Next Attorney General

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Roll Call is slightly to the left for my tastes, but it has a short, intelligent and spot-on article today listing ten questions the Senate is likely to ask the next nominee for Attorney General.

CJLF Newsletter

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For readers interested in following CJLF's work, the present and previous editions of our quarterly (more or less) newsletter, the Advisory, are available online.  Links are maintained in the Publications section of our main web site.

Hard copies of the Advisory are mailed to all CJLF contributors upon publication.

News Scan

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Accused Murderer Faces Death Penalty in Two States: An Illinois man who sparked a two-state manhunt last month will now face death penalty trials in both Ohio and Kentucky for his crimes.  Jill Drury of WDTN News reports that 41-year-old Terry Froman is accused of murdering a teenager in Kentucky and then kidnapping the boy's mother and driving her to Ohio, where he shot and killed her as well.  Froman will face murder charges in Kentucky first, then face kidnapping and murder charges in Ohio, he is being held on $1 million bond.

Convicted Sex Offender Identified as Murder Suspect: An Indiana man is behind bars and facing murder charges after confessing to killing at least seven women.  CBS Chicago reports that 43-year-old Darren Vann, who is a registered sex offender in Texas, allegedly told police that the murders date back to as many as 20 years ago, and so far, all of his victims appear to be women.  Vann claims to have victims in other states as well, but is only choosing to discuss his Indiana victims because the state has the death penalty and he wants to be executed for his crimes.

Parole Denied for Convicted Cop Killer: One of the men convicted of murdering a Massachusetts police chief will remain behind bars after being denied parole for the second time since being convicted two decades ago.  Scott J. Croteau of The Telegram reports that 42-year-old Kenneth B. Padgett, along with two co-defendants, were breaking into homes and stole a vehicle on the morning of February 1, 1994, when the officer pursued them one of the men fired several rounds piercing his lung and heart, leaving him for dead.  Since being incarcerated, Croteau has had several disciplinary issues and involved himself in a white supremacist gang.  His next parole hearing will be in a few years.
We often hear that non-violent offenses, of which white collar offenses are a significant part, should seldom or never earn jail time.

I have previously argued that non-violent offenses can be terribly harmful and often merit imprisonment.  Swindling an elderly couple out of their life savings or selling heroin to a teenage addict are among numerous examples.

Today, I saw a story in the ABA Journal about a white collar offense  -- insurance fraud  --  in which the defendant had additional things in mind to see to it that he'd become one of the "exonerated":

Already facing a 50-count indictment, a jailed defendant in a California insurance fraud prosecution is now facing 10 new charges concerning nine witnesses he is accused of targeting for murder in the Contra Costa County case.

District Attorney Mark Peterson said a witness "hit list" found by investigators not only lists the nine witnesses allegedly targeted by Charles Waldo, 37, but specifies the order in which they were to be killed and the methods by which they were to be slain, the Bay Area News Group and KTVU report.

The methods included fatal drug overdoses and staged car accidents, as well as slayings during robberies "gone bad," the DA said.

The Journal story noted that the articles don't include any comment from the defendant or his counsel.  I have no trouble believing that.

Looks like criminal law and law enforcement are going to be a bigger part of this Term of the U.S. Supreme Court.  The Court's Monday orders list took up for full briefing and argument three criminal and related cases:

Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala.   The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus.  If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.

Los Angeles v. Patel, No. 13-1175:  Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can?  There are a lot of heavily regulated industries that have such requirements.  The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example.  No warrant or particularized basis of suspicion required.  How about hotels?

Henderson v. United States, No. 13-1487:  What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?
Question:  When can a judge ethically be an advocate for a party in his court?

Answer:  Pick one  --  (a) never; or (b) when the party is a violent criminal serving the sentence he earned.

Until Saturday, I didn't know anyone who would pick (b) over (a).

On that day, however, I learned that it might be OK for a judge to be an advocate for a party, at least in a case where he has "a strong vision of legal justice and then acts in service to that vision."

That's the answer I believe is suggested by Prof. Doug Berman, a distinguished lawyer and law professor who sees things from the defense perspective.

I respectfully dissent.  It is precisely when the judge feels most strongly that he must be most disciplined.  The credibility of the judicial branch, and indispensable public confidence in its neutrality, require nothing less.  The notion that the judge can be an advocate for one side is toxic to the core idea of what it means to be a judge at all.
Last year, the Legion of Whiners was in good form, trying to intimidate speech not conforming to their views.  Indeed, they marched beyond the typical snarling reception given conservative speakers, and filed a formal complaint against Judge Edith Jones of the Fifth Circuit for her talk at a Federalist Society function at the University of Pennsylvania Law School.  The gist of the complaint, as reported below, was that the Judge's remarks were  --  ready now?  --  racist, and inappropriately favorable to the death penalty.

The complaint was widely reported, see, e.g., this NYT story and this one from CBS.  It was also reported on legal blogs, see, e.g.,  this entry.

The complaint was referred by Chief Justice Roberts to the DC Circuit.  After a lengthy and thorough investigation, the Court rejected the complaint in its entirety, with no dissent.  Its order is here.  Hat tip to Judge Richard Kopf on his blog Hercules and the Umpire.

I have been writing recently about left wing attempts to silence dissenting conservatives, basically by false and disgusting accusations.  The Jones complaint was of a piece with this New McCarthyism.........as is the relative silence about its dismissal.

Congratulations to Judge Jones.  May she serve many more years on the bench, and continue to defy the Politically Correct Brownshirts who would silence her.

SCOTUS Denies Stay of Texas Voter ID

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Consistently with its recent pattern of not making major election changes close to the election, noted here, the U.S. Supreme Court has denied the application to lift the Fifth Circuit's stay of an injunction against that state's voter ID law.  In other words, the ID law will be in effect for the coming election.

The vote was apparently 6-3, with Justices Ginsburg, Sotomayor, and Kagan dissenting.

The Legalization Lobby Parodies Itself

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Those preferring to see more widespread use of pot are, naturally, for legalizing it, thus removing one of the barriers to broad consumption.

In the course of their campaign (upon which CJLF takes no position), they have claimed that pot affirmatively makes you healthier.  Indeed, it's something of a wonder drug!

Thus I guess this was bound to happen, but I still feel like I should pass it along:  "Smoking Marijuana Can Protect You From Ebola."

I swear I am not making this up.
President Obama yesterday named DC lawyer Ron Klain as the Ebola "czar."  I know Mr. Klain only very slightly, from when I was moving out of the White House at the end of the GHWB administration and he was helping the Clinton administration move in.  I found him intelligent, thoroughly pleasant and a gentleman.  Our contacts were slight and fleeting, and I haven't seen him in more than 20 years. 

The WSJ has an editorial today about the Klain appointment.  Its title is, "Ebola Political Contagion," and it begins:

President Obama bowed to the growing Ebola political furor on Friday and named a so-called Ebola czar, though maybe the better label is apparatchik. His man isn't a military general, despite the troops in West Africa, or even someone with so much as nominal expertise in disasters or infectious disease. He's the political operative Ron Klain.

The Attorney General has directed that appeal waivers in plea agreements should no longer require that defendants waive the right to raise ineffective assistance of counsel claims.  The story is covered here on SL&P, and the Deputy Attorney General's memo is here

As the SL&P entry notes (in the comments section), I am the inventor of appeal waivers.  I litigated their validity for the first time in federal court in US v. Wiggins, 905 F.2d 51 (1990).  That case, and all subsequent cases on the question in the courts of appeals, upheld the waiver.  Probably because the resolution is so obvious, and the appellate courts unanimous, the Supreme Court has never addressed the issue.  I will bet $1,000 here and now on the outcome if it ever does.

The reason the issue is obvious, as explained by Judge Wilkinson in the Fourth Circuit's seminal opinion, is easy to summarize:  If a defendant can waive his constitutional right to a trial, something that has been established forever, he can waive his mere statutory right to an appeal.

DOJ's new modification makes little difference, to the small extent there has been a modification at all.  Accordingly, it's not causing me a lot of heartburn.

News Scan

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Rapist/ Murderer Released from Prison: An Oregon man convicted of raping and murdering a high school classmate more than two decades ago has been released from custody.  Emily E. Smith of The Oregonian reports that Conrad Engweiler, who was 15-years-old at the time of the killing, was convicted of raping and strangling Erin Tonna Reynolds to death in 1990, he was originally sentenced to life in prison with a minimum of 30 years but that sentence was eventually reduced after several parole hearings.  Engweiler will be required to register as a sex offender and will be supervised for a minimum of three years.

Prosecutors to Seek Death Penalty Against Accused Killers
: Prosecutors in Georgia intend to seek death sentences for a pair of men accused of kidnapping and murdering a young couple in August 2014.  Steve Visser of the Atlanta Journal-Constitution reports that the two men are accused of kidnapping a man and his pregnant wife for ransom.  The couple was later found shot to death just miles away from their home.  One of the suspects, 40-year-old Cleveland Gay, was released on parole earlier this year after serving nearly 22 years of a life sentence he received in 1992 for murdering two people when he was 15-years-old.

Murderer Sentenced to Life: A Washington man convicted of murdering two people and nearly killing a third has been sentenced to spend the rest of his life behind bars without the possibility of parole.  KOMO News reports that 39-year-old Aaron Livingston agreed to plead guilty to two counts of first-degree murder and one count of attempted murder for the beating death of his girlfriend and a man he suspected she was having and affair with.  After the murders, Livingston tried to kill a 60-year-old family friend by strangling her with an electrical cord. 

News Scan

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Ex Con Charged With Murder: A repeat felon has been arrested and charged with killing a Northern California man and then shooting the man's mother earlier this year.  KTVU News reports that 34-year-old Demond Spikes shot the man in the abdomen and the head before turning the gun on his mother and shooting her through a sliding glass door.  If convicted, Spikes faces a possible life sentence since he already has two prior felony convictions and this would become his third strike.

Prosecutors to Seek Death Penalty for Accused Killer: Prosecutors in Kansas have announced their plans to seek the death penalty for a man accused of murdering his adoptive parents.  Tim Potter of the Wichita Eagle reports that 19-year-old Anthony Bluml began resenting his parents after he was kicked out of the home for smoking marijuana.  Police believe he killed his parents in order to gain access to the couple's life insurance.  Bluml is just one of four defendants charged in the murder.  His biological mother also participated in the killings and has also been charged with two counts of first-degree murder.

Realignment Offender Linked  to Car Theft Ring: A California man currently on Post-Release Community Supervision (PRCS) for a vehicle theft conviction has been arrested yet again for stealing more vehicles and knowingly receiving stolen property.  Allison Gatlin of The Californian reports that 45-year-old Gary Dean had been arrested at least six times between 2006 and 2011 on a variety of charges.  IN 2011 he was arrested after leading police on a high-speed chase in a stolen vehicle.  He was released on PRCS after serving time behind bars.  Dean is currently being held in county jail on a number of charges including vehicle theft, possession of stolen property, and possession of stolen vehicles.

CBS4 in Denver has this story with the above title.

A victim of the Aurora theater massacre said he believes defense lawyers and anti-death penalty groups have tried to use him like a pawn.

News Scan

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Murderer Sentenced to Nine Life Terms: A California judge has sentenced the leader of a notorious Mexican drug trafficking gang to nine life terms without the possibility of parole after being found guilty on multiple counts of murder and kidnapping.  KUSI News reports that 35-year-old Juan Estrada Gonzalez was sentenced to 29 years in prison in Mexico in 2003, but he escaped and came to the United States, where prosecutors say he murdered six people between 2004 and 2007.  Estrada Gonzalez's co-defendant was also sentenced to life in prison without the possibility of parole.

NJ High Court Upholds Attempted Murder Conviction: The New Jersey Supreme Court has upheld the attempted murder conviction for a man found guilty of shooting a police officer in 2012.  WMUR News reports that Myles Webster was sentenced to 60 years to life in prison for shooting the officer multiple times at close range, leaving him critically injured.  Webster appealed his conviction based claiming that he was wrongly identified by the officer and witnesses interviewed at the scene of the crime.     

Prosecutors to Seek Death Penalty Against Florida Man: Prosecutors in Florida will seek the death penalty for a man charged with the of killing his girlfriend's one-year-old son.  The Tampa Bay Times reports that 24-year-old Austin Hamilton allegedly beat the young boy repeatedly with a belt before dropping him on his head, resulting in his death.  Hamilton admitted to police that he 'lost control' while changing the boy's diaper and hit him multiple times with a belt, but has pled not guilty to first-degree murder and aggravated child abuse charges.

Jennings v. Stephens Argument, Continued

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The argument transcript in Jennings v. Stephens is now available.

On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on.  If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one.  See pages 9 and 14 of CJLF's brief.  He seeks to assure the Supreme Court this scenario would be rare.  I don't know about Texas, but it is certainly not rare in capital cases in California.  Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno.  It's all part of the strategy to throw as much sand in the gears as possible.

Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court.  The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial.  The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.

The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal.  This is called issue preclusion or collateral estoppel.  A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus.  In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others.  The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period.  Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them.  Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.

Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel.  I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case.  That would simplify things considerably, and Justice Breyer notes our brief  to that effect at pages 48-49.

Update, 10/17:  Rory Little has this analysis of the argument at SCOTUSblog.

Jennings v. Stephens Argument

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The U.S. Supreme Court is hearing argument today in Jennings v. Stephens. We noted this case in the week preview last Friday.  Rory Little has a preview at SCOTUSblog, with some complimentary things to say about CJLF's brief.

The transcript should be available this afternoon.

Chemerinsky and the Supreme Court

UC Irvine Law Dean Erwin Chemerinsky's new book attacking the Supreme Court has caused Volokh Conspirator Orin Kerr to "wonder[] if he was just criticizing the Supreme Court for not agreeing with his policy preferences."

Orin has this Q-and-A with Dean Chemerinsky in which Chemerinsky attempts to answer that question "no," but even the left-leaning commenters on the post mostly agree that he ends up demonstrating that the answer is "yes."

Texas Voter ID

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As predicted in this post, the Fifth Circuit Court of Appeals has followed the Supreme Court's pattern and stayed an injunction against Voter ID.  The pattern is that the high court disallows late changes, whichever way they go.

Early voting in Texas begins on Monday, October 20. On Saturday, October 11--just nine days before early voting begins and just 24 days before Election Day--the district court entered a final order striking down Texas's voter identification laws. By this order, the district court enjoined the implementation of Texas Senate Bill 14 ("SB 14") of the 2011 Regular Session, which requires that voters present certain photographic identification at the polls. The district court also ordered that the State of Texas ("State") instead implement the laws that were in force before SB 14's enactment in May of 2011. Based primarily on the extremely fast-approaching election date, we STAY the district court's judgment pending appeal.
Lyle Denniston has this post at SCOTUSblog.

Assigning Judges to Cases

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In most courts below the level of the Supreme Court (state or federal), most cases are heard by something less than all the judges of the court.  How do judges get assigned to cases?  Can assignments be manipulated?  Are they?

Presently, there is a big controversy in the Ninth Circuit regarding assignments to the same-sex marriage cases.  Josh Blackman has this post at his eponymous blog.  It seems Judges Reinhardt and Berzon get assigned to these panels at rates far beyond what can plausibly be explained by chance.  CJLF takes no position on the underlying issue in these cases, but the fairness of judicial assignments is something that does concern us.

In civil litigation affecting the criminal justice system, we have seen manipulations of the "related case" rules to funnel the prisoner rights cases and the cases blocking implementation of an important reform of capital habeas corpus to the most prisoner-friendly judges.  The three-judge panel that heard the California overcrowding case was the prisoners' dream team.  If I were representing the prisoners and could choose any three judges from the entire federal judiciary, those are the three I would have chosen.

The next Congress should take a good, hard look at judicial assignment policies.  This is too important to leave to local rules of court.
Nedra Pickler has this story for AP, incorrectly headlined Obama waiting for midterm to name Attorney General. As the text of the story makes clear, he is not going to wait for the midpoint of his term, January 20, but instead is only waiting until the election is past.

President Barack Obama does not plan to announce his choice for attorney general before the November elections, shielding the nomination from the midterm election politics while setting up a potential year-end showdown with the lame duck Senate.
Shielding the nomination from politics?  My, doesn't that sound noble?  Reality is more like shielding the Democratic candidates in close races from having to answer to the people, which is how our representative democracy is supposed to work.

There wouldn't be any need to "shield" if the President were planning to nominate a solid, non-divisive candidate.  So this timing tends to indicate that another divisive, partisan nominee who will continue the politicization of the Department of Justice is headed our way.

News Scan

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Realignment Offender Suspected of Murder: Police in Barstow, CA believe that the person responsible for murdering a man Monday night is on active Post-Release Community Supervision (PRCS), a form of probation started under Governor Brown's Realignment legislation.  Jose Quintero of the Desert Dispatch reports that 22-year-old Andrew Gallegos, a known gang member, stabbed his victim to death Monday evening just after 8:00 p.m.  Police have yet to locate Gallegos and are warning citizens not to approach him as he is believed to be armed and dangerous.

Rapist Denied Release: An Ohio man scheduled for release from prison this week will remain behind bars after his DNA linked him to five unsolved rapes.  Sean Rowe of Fox Columbus reports that 54-year-old Dwayne Wilson, who was already serving a five-year sentence for a separate sexual assault conviction, will now be charged with nine counts of rape and five counts of kidnapping after DNA linked him to assaults against five women between 1994 and 1997.  Ohio Attorney General Mike DeWine recently launched a campaign to test thousands of rape kits that had gone un-tested across the state, so far, the campaign has resulted in over 1,000 hits to DNA already in a nationwide database.   

FL Supreme Court Upholds Death Sentence: Florida's highest court has upheld the death sentence for convicted rapist and murderer William Davis III.  Desiree Stennett of the Orlando Sentinel reports that Davis kidnapped a 19-year-old receptionist from her workplace before raping and strangling her to death.  Davis never denied his involvement in the murder and actually requested that he be sentenced to death during his trial. His attorneys have not announced whether they will appeal to the U.S. Supreme Court.

If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence.

Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence.  Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt?  There is no logical reason why it should, yet the practice remains controversial.

Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026.  Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.

Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime."  Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt.  What is "substantively unreasonable" you might well ask?  Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case.  "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.

I think that is stretching "elements" way too far.  The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.

Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.

P.S.: Looks like Bill and I were writing on this at the same time.  I'll leave them both up, so readers get two perspectives on the case.

No New SCOTUS Cases, Part II

Among the cases to which cert was denied today was a very big sentencing case, Jones v. US, No. 13-10026.  The basic issue was whether a sentencing judge could take account of "acquitted conduct."  The DC Circuit, in conformity with others, said yes, and the Supremes allowed its judgment to stand.

There were three votes for cert  --  Scalia, Thomas and Ginsburg.  Doug Berman, one of the leading voices pushing for SCOTUS review, has this post on it at SL&P.  

I cannot go into detail about this right now  --  other duties call  --  but I agree with the denial of cert.  The issue is all but governed by the Court's decision in Watts, decided 17 years ago. Despite Apprendi, a convicted criminal has no right to a determination beyond a reasonable doubt of facts used to fashion a sentence that is within the statutory range.  Jones's sentence was within the range.

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker.  Two remedies were on the table in that case:  Requiring a jury's judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can't have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

Second, contrary to the wide misconception among laymen, an acquittal does not mean the defendant didn't do it.  It means only that the jury was not convinced beyond a reasonable doubt that the government proved every element of the offense.  If defendants should be sentenced on the whole of who they are and what they do  --  as the defense bar routinely insists in every other context  --  then there is no injustice in sentencing them based in part on conduct they actually undertook, whether or not they got convicted for it. 

No New SCOTUS Cases

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The U.S. Supreme Court, back from its Columbus Day holiday, issued its virtual-Monday orders list today. No new cases were taken up.

Studies and Coding

In almost every debate about policy, someone asserts confidently that "studies show" whatever supports their position.  However, what "studies show" is not necessarily so.  Occasionally on this blog we highlight why the neat little bottom line result that makes the newspaper may not be true.  Sometimes, the reason involves inherent difficulties in studying a particular area, fully disclosed by the researcher, but deemed too complicated for a newspaper article.  Sometimes it is simple sloppiness on the part of the researcher.  In the worst case, it represents intentional manipulation by an agenda-driven researcher intent on producing "evidence" for a predetermined position.

Eugene Volokh has this comment at VC on a study that purports to show that Supreme Court Justices are more likely to vote for protection of a speaker in First Amendment cases if they are ideologically aligned with that speaker.

Before studiers can crunch numbers, they have to reduce real-world realities to simple numbers.  This is called coding and there is a lot of opportunity for either error or distortion in this process.

Ebola, Race and Criminal Justice

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Ebola screening of persons on incoming flights, and the concomitant implicit threat of detention and possible coercive quarantine, is deployed disproportionately against "people of color," to use the current politically correct phrase.  

Q:  Why, then, haven't the Usual Whiners against racial disproportionality been at the top of their lungs in protest? 

A:  Because even they understand that the government's response, though grossly racially disproportionate, has nothing to do with race.  It has to do with behavior. Specifically, it has to do with the higher-than-average prospect that persons on those particular flights have come in contact with the virus.

Q:  So why do Whiners refuse to understand that racial disproportionality in important areas of the criminal justice system  --  e.g., concentrating police patrols in high crime areas, and stiffer sentencing for those with long records or histories of violence  -- likewise reflects attention to behavior rather than attention to race?

A:  Because that is not on the Whiner Agenda.  Indeed, it affirmatively undermines the Agenda.  Once it is recognized that differences in treatment reflect differences in chosen behavior rather than differences in skin color, the Agenda collapses, and with it much of the force of the attack on police and prosecutors.

News Scan

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Convicted Murderer Beats Mother to Death: A New Jersey man is in custody and charged with beating his mother to death just days after he was released from serving a 30-year prison sentence for murder.  The Associated Press reports that 45-year-old Steven Pratt allegedly beat his mother to death Sunday morning after his family threw a welcome-home party for him celebrating his release from prison.  In 1984, Pratt was convicted of murdering his next-door neighbor when he was 15-years-old and sentenced to 30 years in prison after being tried as an adult, he is once again facing first-degree murder charges and is being held on $1 million bail.

OK Attorney General Seeks to Delay Upcoming Executions: Oklahoma Attorney General Scott Pruitt has filed a notice seeking to delay three of the state's upcoming executions.  The Associated Press reports that the attorney general has announced that the state needs more time to obtain execution drugs and time to train staff on new execution protocols.  Oklahoma put all executions on hold after the botched execution of Clayton Lockett earlier this year.

Convicted Killer Sentenced to 160 Years in Prison: A Chicago man has been sentenced to 160 years in prison after being found guilty of stabbing to death a 14-year-old girl nearly three years ago during a botched home robbery.  ABC News reports that 41-year-old John Wilson Jr., an ex-con, stole the young girl's cellphone after killing her and taunted her mother by sending text messages from her phone.  Wilson was given the maximum sentence for the killing, as the state of Illinois does not have the death penalty.

Should We Ever Have LWOP for Juveniles?

Since the Supreme Court, acting as it so often does on its own tastes, outlawed mandatory LWOP for juvenile murderers, there has been a raging debate whether LWOP should ever be allowed for adolescent killers. You can guess which side academia, the press and the one-direction-only defense bar take.

This grisly story will not make them reconsider, because nothing makes them reconsider. That's because, despite their demand for "evidence-based sentencing," they are not about to take an honest look at any actual evidence when it undermines their predetermined position.

Into the Fog, as Predicted

When the President traded five high-value Taliban commanders for Sgt. Bowe Bergdahl, in patent violation of United States law, we were told that there would be, in good time, a full investigation into the circumstances under which Bergdahl left his unit and wound up with the enemy.  But a full investigation would take weeks, perhaps months.  In the meantime, the first priority was to see to Sgt. Bergdahl's health.  There would be, so we were assured, an accounting later whether Bergdahl was, as many in his unit charged, a shirker and a deserter.

I was skeptical.  I wrote a little more than three months ago:

I [may have] overestimated the President's willingness to act directly and take responsibility for letting Bergdahl off the hook.  It now appears more likely that, while I was correct in saying there isn't going to be any honest investigation, there may not be any pardon as such, either.  Why should there be? Why should there be, that is, when the President can just believe  --  not unintelligently  -- that, if dragged out for long enough, the whole thing will disappear into the fog of even more prominent scandals?

And sure enough.  The Hill newspaper has this Friday afternoon newsdump story titled, "Army Won't Release Bergdahl Review." 

Goodness gracious!  Still, I can take only piddling credit for prescience.  Anyone with the IQ of a tomato understands that this Administration's promises of "accountability" in the by-and-by are nothing but the first step of "dragg[ing] it out for long enough [so that] the whole thing will disappear into the fog of even more prominent scandals."

SCOTUS Next Week

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Monday is Columbus Day, a government holiday, so the orders list from today's conference will be issued Tuesday.  Today the Court issued a single order lifting a stay in one of the same-sex marriage cases, presumably from the conference though not on the list.  Cert Pool has the list.  SCOTUSblog has its list of Petitions to Watch.  More on that after the break.

Tuesday's arguments feature an "original jurisdiction" case, one of the few that the Constitution allows to be filed directly in SCOTUS, not appealed from a lower court.  Yep, states suing each other over rivers again.  Also a case about state regulators and antitrust.

Wednesday's calendar has a civil case about appellate courts reviewing district court factual findings.  That might have something of interest for those who do federal habeas cases, which are technically civil.

The case most relevant to this blog, also Wednesday, is Jennings v. Stephens.  It has to do with the procedural requirements for a habeas petitioner who prevails on one issue but loses on the others, and who wants the court of appeals to review the others when the state appeals on the one it lost.  Does he need to cross-appeal?  Does he need a certificate of appealability? 

If he needs a COA for rejected claims, how finely do we parse the claims?  If the petitioner says his lawyer was ineffective for reasons A, B, and C, and the district court says A and B were fine but C was ineffective, does he need a COA for A and B?

CJLF has filed one of its very few briefs disagreeing, in part, with the prosecution.  We take the position (disagreeing with the petitioner) that he does indeed need a COA for rejected claims, but we also believe (disagreeing with the state) that ineffective assistance is one claim for each phase of the trial.

News Scan

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Man Wearing GPS Device Arrested on Drug Charges: A Massachusetts man on federal probation for drug possession and distribution has been arrested again for drug sales despite having a GPS monitoring device attached to his ankle.  George Graham of The Republican reports that 26-year-old David Faust was arrested Thursday afternoon for selling cocaine, OxyContin, and marijuana throughout the city of Springfield, Massachusetts.  Faust has a lengthy criminal past and has been arrested on multiple occasions for drug possession and sales.

DNA Links Man to Cold Case Murder: A Texas man is behind bars and facing murder charges after a DNA sample linked him to a 2008 cold case killing.  Shaley Sanders of KCBD News reports that 43-year-old Billy Lumbaugh Jr. is the man believed to be responsible for killing a Lubbock woman in 2008 and dumping her body in a field.  In addition to the murder charge, Lumbaugh was also linked to an unsolved rape and an unsolved kidnapping and robbery. 

Kansas Man Faces Possible Death Sentence: A Kansas man faces a possible death sentence if he is found guilty in the brutal murders of a mother and her three young children.  Jeff Lehr of CNHR News reports that 23-year-old David C. Bennett Jr. allegedly broke into the woman's home and sexually assaulted her in the middle of the night.  He returned hours later and strangled the woman and her three young children to death.  Bennett is currently being held in county jail on charges of first-degree murder and rape.

The Next AG? OMG

Curt Hulse reports at NYT's First Draft:

The White House is moving more quickly than anticipated to select a new attorney general and is poised to announce President Obama's choice before the Nov. 4 election, with Labor Secretary Thomas E. Perez emerging as a leading candidate.

Many on Capitol Hill expected the president to wait until after the election to avoid making the nominee a campaign issue for embattled Democratic Senate candidates. But people familiar with the administration's planning now say an announcement could come in the next few weeks.

No final decision has been made, they said, but Mr. Perez, 53, a former Justice Department civil rights official and the son of Dominican immigrants, is at the top of the list. His nomination would be applauded by many Hispanic leaders. And he has a compelling personal story, having worked as a trash collector to help put himself through Brown University.
*                                     *                               *
Mr. Perez was opposed for the labor post by Republicans, who branded him an ideologue who selectively enforced civil rights laws. But Democrats could push the nomination through in a lame-duck session on a simple majority vote.
Well, maybe we need trash collection experience given all the garbage we have gotten from Mr. Holder, but I seriously doubt Mr. Perez is the man for the job.  For those who thought the next AG would have to be an improvement, maybe not.

My first job after high school was shoveling sand into sandbags at the White Sands Missile Range.  Maybe I should apply, given all the sandbagging Mr. Holder has done in response to congressional investigations.
Wayne Hall of the University of Queensland (Australia) Centre for Youth Substance Abuse Research has a monograph with the above title in the journal Addiction.  Here is the abstract:

Aims:  To examine changes in the evidence on the adverse health effects of cannabis since 1993. Methods:  A comparison of the evidence in 1993 with the evidence and interpretation of the same health outcomes in 2013. Results:  Research in the past 20 years has shown that driving while cannabis-impaired approximately doubles car crash risk and that around one in 10 regular cannabis users develop dependence. Regular cannabis use in adolescence approximately doubles the risks of early school-leaving and of cognitive impairment and psychoses in adulthood. Regular cannabis use in adolescence is also associated strongly with the use of other illicit drugs. These associations persist after controlling for plausible confounding variables in longitudinal studies. This suggests that cannabis use is a contributory cause of these outcomes but some researchers still argue that these relationships are explained by shared causes or risk factors. Cannabis smoking probably increases cardiovascular disease risk in middle-aged adults but its effects on respiratory function and respiratory cancer remain unclear, because most cannabis smokers have smoked or still smoke tobacco. Conclusions: The epidemiological literature in the past 20 years shows that cannabis use increases the risk of accidents and can produce dependence, and that there are consistent associations between regular cannabis use and poor psychosocial outcomes and mental health in adulthood.
In olden times, proponents of marijuana prohibition ridiculously exaggerated its harmful effects, a campaign reaching its unintentionally hilarious peak in the film Reefer Madness.  Today, proponents of legalization engage in equal and opposite propaganda, trying to convince us that marijuana is completely harmless.  I call this campaign Reverse Reefer Madness.  CJLF takes no position on the legalization issue, but we should be basing our decisions on science, not propaganda.  Hall says:

Our best estimate is that the risk of developing a psychosis doubles from approximately 7 in 1000 in nonusers [102] to 14 in 1000 among regular cannabis users.
Schizophrenia is a terrible disease.  It wrecks people's lives.  It has a profound impact on the lives of people close to them.  Doubling the risk is no trivial matter.

Hat tip to Michael Tremoglie, who has this article at Main Street.

More Voter ID Developments

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Brent Kendall reports in the WSJ on developments in voter ID cases.

Voter identification laws suffered setbacks in two states on Thursday, with the U.S. Supreme Court blocking Wisconsin from imposing its voter-identification measure during the midterm elections and a federal judge in Texas striking down that state's ID law.

The Supreme Court's action in Wisconsin marked its third recent intervention in a high-profile election case, and the first before the high court in which advocates for minority voters prevailed.

The justices in the two other cases allowed Ohio to cut back on early voting and cleared North Carolina to impose new, tighter voting rules.

The high court in each case effectively put the brakes on lower court rulings that would have prompted late changes in election procedures in the run-up to the Nov. 4 day.

Meanwhile, a U.S. District Judge in Texas said that state's voter ID law amounted to an "unconstitutional poll tax," an outcome the state said it would immediately appeal.

The unfortunate thing about this "avoid late changes" approach is that the timing of an order rather than its merit may determine whether it is in effect for the election.  If the Fifth Circuit follows the same pattern, it will stay the District Court's order.  It won't matter that much in Texas, where the most important races aren't close.  But the Wisconsin governor's race is a tossup, and if the final tally is close enough, the deceased vote could tip the balance.

Update:  Text of the order and dissent follows the break.

News Scan

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Convicted Killer Sentenced to Life: A Texas teenager has been ordered to spend the rest of his life behind bars after being found guilty of murdering his mother earlier this year.  Jason Molinet of the New York Daily News reports that 18-year-old Kevin Davis beat his mother to death with a hammer before sexually assaulting her corpse.  He also told police that he was planning on killing his sister as well, but got tired of waiting for her to come home.  Prosecutors originally gave Davis the option of serving just 60 years behind bars, but he declined, deciding to let the jury determine his sentence.   

Suspect Arrested in Cold Case Murder: A California man suspected of murdering his mother-in-law more than a decade ago has been arrested and charged with her murder.  CBS Los Angeles reports that 46-year-old John Gutierrez allegedly beat the woman with a blunt object before tying a bag over head, causing her to die of asphyxia.  Police announced that newly found evidence and witness interviews led to the eventual arrest of Gutierrez earlier this week.

CA Man Sentenced to Death: A California man convicted of murdering two women in Los Angeles three decades ago has been sentenced to death.  Marc Cota-Robles of ABC News reports that 50-year-old Kevin Haley was originally sentenced to death for one of the killings in 1988, but the California Supreme Court reversed the special circumstance allegations, which forced a re-trial.  This time around, the jury found that the special circumstance did in fact apply and Haley was sentenced to death for both murders.  

More on Heien v. North Carolina

On Monday, I wrote this post on the oral argument in Heien v. North Carolina, a case where the defendant wants evidence resulting from a traffic stop suppressed.  A police officer stopped the car for having only one of two brake lights working, and the state court of appeals, to the surprise of just about everyone, decided that was not a violation in North Carolina.

If the U.S. Supreme Court agrees with the North Carolina Supreme Court that the officer's good faith belief about the law makes this a reasonable seizure, then the case is simple.  If not, it gets complicated.  Rory Little has this analysis at SCOTUSblog predicting that the Court will indeed take the simple route and affirm the state court on the substantive Fourth Amendment question, leaving the complicated issues to another day.

News Scan

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Florida Teen Sentenced to Life in Prison: A Florida teen convicted of murdering two people during a carjacking attempt in 2011 has been sentenced to spend the rest of his life behind bars.  NBC Miami reports that 19-year-old Eric Ellington told authorities that he shot one of his victims 11 times at point blank range because he "didn't look scared enough" when Ellington demanded that he get out of his vehicle.  Ellington's two accomplices at the time of the killings have also been charged with first-degree murder and are awaiting sentencing.

Man Extradited in Decades-Old Cold Case: A California man has been extradited to Kentucky in order to face charges in the murder of a 20-month-old baby more than 40 years ago.  Matthew Glowicki of The Courier-Journal reports that 65-year-old Lawrence Beck brought his girlfriend's son to the hospital in December of 1971 claiming that the child was unresponsive due to illness.  Doctors were unable to revive the boy and quickly determined that he exhibited signs of severe abuse.  Due to limited forensic technology, police were unable to make an arrest.  Police now believe they have enough forensic evidence to convict Beck of murder.  He is currently being held in a Kentucky county jail on $500,000 bond.

Alabama Man Convicted in Triple Homicide: An Alabama killer now faces a possible death sentence after being found guilty of murdering three men at a party in 2012.  CBS News reports that 24-year-old Desmonte Leonard was convicted on several counts of murder and attempted murder.  At a party in Auburn in June 2012 Leonard fired his gun nine times into a crowd leaving three men dead and three others wounded.  Leonard faces a minimum sentence of life without parole.

Jury Deliberations

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Today the U.S. Supreme Court heard oral argument in a civil case that criminal law practitioners should be aware of.  The Question Presented in Warger v. Shauers, No. 13-517 is:

Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.
This rule applies to civil and criminal cases alike.  Although a U.S. Supreme Court opinion on the Federal Rules of Evidence is binding precedent only in federal courts, we can expect it to be strongly persuasive in state courts as well, especially in states that have copied the federal rules.

Update:  Adam Liptak covers the argument for the NYT:

After a truncated and unusually one-sided argument, the Supreme Court on Wednesday appeared unlikely to allow jurors to testify about their deliberations, even to expose dishonesty during jury selection.

Rich People in Prison

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One gripe we hear all the time is that defendants with money invariably get away with their crimes or at least get off easy.  It's not true.  R. Scott Moxley at O.C. Weekly reports on the background of the murder conviction reinstated by the U.S. Supreme Court on Monday and noted in this post.  It turns out that defendant Marvin Smith was a multimillionaire. 

The rich and famous Phil Spector is also a permanent guest of California taxpayers.  In Delaware, big time political mover and shaker Thomas Capano was sentenced to death.  He got off death row the same way thousands of others have -- the Supreme Court changed the rules after the trial was over.

What about O.J. Simpson?  His acquittal was mainly the result of racial dynamics in the wake of the Rodney King riots.  The dream team wasn't all that dreamy.  The prosecution proved his guilt sufficiently to convince an unbiased jury beyond a reasonable doubt; the problem was the jury.

That is not to say that a better lawyer will never make the difference in a close case.  But most cases are not close.  The difference is at the margins.
FBI Special Agent John Cauthen has this article in the FBI Law Enforcement Bulletin.
The Heritage Foundation is no longer the devil it once was on the Left. Recently, Heritage has come out strongly for reforming mandatory sentences, and against over-criminalization and over-federalization of law.  

I am sympathetic to the latter and skeptical to the former, though I know sentencing reform is backed by very good people and friends like John Malcolm and Paul Larkin at Heritage and Sen. Ted Cruz.  Of course it also has the backing of George Soros, the NACDL and the SEIU, which you'd think would scare off anyone to the right of Valerie Jarrett.

This prelude is necessary to equip my friends at Heritage to duck the brickbats headed their way to the effect that, "I always knew you were fascists after all"  -- brickbats sure to blacken the sky when Heritage reports that its scholar's extensive study shows: 

Based on data from all 50 states from 1978 to 1997, each state execution deters...

Of course deterring the murder of innocent people by executing stone cold guilty ones has never been a big priority with the Left, which has preoccupied itself instead peddling the flabbergastingly false story that blacks are in mortal danger from rampaging whites.  They might want to try again, though self-correction  -- or any other kind for that matter  --  doesn't wear well with the pious (when not snarky) Mark Oslers of the world.  

Still, for those who haven't had their brains fried on critical legal studies and other forms of Amerika Stinks theory, the Heritage Study results showing the death penalty's deterrent value will be of more than a little interest.

USCA7 Upholds Wisconsin Voter ID

Casting a vote while impersonating someone else is a crime.  We have to show ID all the time for a variety of other purposes in life, and showing one to vote is not a big deal.  No, it does not discriminate against the poor as long as the state makes it free to get one.  The Supreme Court upheld voter ID five years ago.

Yesterday, the Seventh Circuit upheld Wisconsin's voter ID law in Frank v. WalkerRick Hasen at Election Law Blog is apoplectic.  "Regardless of where you stand on the merits of the constitutional and voter id problem, it is unconscionable to roll out voter id without adequate time for everyone who wants to get id to do so."

Roll out?  The law was enacted three years ago.  It is being "rolled out" now only because it was wrongly enjoined for the three years since it was enacted.  Blame the late "roll out" on the plaintiffs and the district judge, if you're upset about it.  Should the plaintiffs be able to further delay the implementation of a valid law because they wrongly delayed it this long?

Voter ID is constitutional.  It is good policy.  Get used to it and quit whining.  In modern society everyone should have an ID in any case.  If you perceive a genuine problem, then direct your efforts to helping people get IDs.  Of course, if the real purpose is to facilitate fraud, then helping real people get valid IDs won't help, now will it?
It's generally good manners to say nice things about people on such occasions as their retirements, their funerals, or their advanced-years birthdays.  Just let the bad things slide for the occasion.  It is possible to go too far with that, however.  Mississippi Senator Trent Lott found that out when he said, at Strom Thurmond's 100th birthday party, that America would have had fewer problems if Thurmond had been elected president in 1948.  Although he later saw the error of his ways, Thurmond was a fire-breathing segregationist in 1948, and, no, it would not have been better.  Lott was ousted as Senate Majority Leader.

We saw something similar in the Sacramento Bee over the weekend.  Denny Walsh has this unintentionally hilarious whitewash of the career of one of the worst judicial imperialists on the federal bench, U.S. District Judge Lawrence Karlton, who has finally retired for real (as opposed to the semiretired "senior status").

For example, there is this knee-slapper, attempting to refute the charges of activism with affirmance rate:  "The 9th U.S. Circuit Court of Appeals usually affirmed his decisions, though it was well stocked with appointees of Presidents Richard Nixon, Ronald Reagan, and George H.W. and George W. Bush."

Well stocked?  This should be in The Onion, not a real newspaper.  The Ninth was packed during the Carter Administration.  Anyone who knows anything about the federal courts knows that the Ninth Circuit is nationally notorious as the most left-wing appellate court in the nation, and it is generally the court most reversed by the Supreme Court (although the Sixth is sometimes competitive for the latter dishonor).  A high affirmance rate in the Ninth means nothing with regard to refuting a charge of left-wing judicial activism, and every journalist worth his salt covering the courts knows that.

Walsh says, "To the end, every time Lawrence Karlton interpreted and applied the Constitution, that enduring blueprint of our democracy was in very good hands."  Quite the contrary, democracy was in peril every time Karlton disagreed with its results.   See, e.g., CJLF's and Crime Victims United's brief in Valdivia v. Schwarzenegger.

Walsh also says, "There is little chance we shall see his like again."  On this point, I hope to God he is right.

News Scan

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High Court Rejects Death Penalty Appeal: The United States Supreme Court has rejected an appeal from a Texas man convicted of murder and sentenced to death in 1997.  Lou Antonelli of the Daily Tribune reports that Robert Charles Ladd was sentenced to death in 1997 after being found guilty of brutally raping and murdering a woman before setting her home on fire.  The victim's family is hopeful that since the appeal was denied, an execution date will be set in the near future.

Illegal Immigrant Responsible for Hit and Run: Police in North Carolina revealed that the man responsible for running over two young children last week and then fleeing the scene was an illegal immigrant with an active deportation warrant.  Lisa Boykin Batts of The Wilson Times reports that a county judge raised Marcos Santiaga Bautista's bond from $30,000 to more than $1 million after realizing he was a fugitive.  In addition to the felony hit and run charge, Bautista has also been charged with several other crimes including failure to register a motor vehicle and displaying fictitious registration.

Execution Date set for Convicted Killer: Pennsylvania Governor Tom Corbett has signed a December 2 execution date for convicted murderer Michael Ballard.  Tom Shortell of The Express-Times reports that Ballard pled guilty to murdering four people in a brutal knife attack in 2010.  If the execution is carried out as planned, this will be the first execution carried out in the state of Pennsylvania since 1999.

The Mythical Right to Remain Silent

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The Constitution of the United States guarantees a right to remain silent, right?  Guess again.  What the Fifth Amendment actually says is, "No person ... shall be compelled in any criminal case to be a witness against himself ...."  That is not exactly the same thing.

Emily Green has this story at NPR on a recent decision by the California Supreme Court on the use of silence as evidence of guilt, People v. Tom, and its predecessor case in the U.S. Supreme Court, Salinas v. Texas (2013).  The story has sound bites from several people, including yours truly, but the issue is more complex than can be covered in a brief story.
It's not a good sign when most of your argument before the U.S. Supreme Court is taken up with being grilled by the Justices on whether you have asked the right question, without all that much discussion of whether you have the right answer.  That happened today in the argument of Jeff Fisher for the petitioner in Heien v. North Carolina, No. 13-604.  The transcript is here.

Questions and potential questions in this case include:

1.  Is it legal to drive in North Carolina with only one of the two originally installed brake lights working?

2.  If so, does a police officer's stop of a vehicle in the reasonable belief it is not (there being no published decision to the contrary and the statute being ambiguous at most) violate the Fourth Amendment and the parallel provision of the North Carolina Constitution?

3.  If so, is suppression of the resulting evidence (drugs in the car) required?
Suppose someone who is angry at you says he is going to hunt you down and kill you.  Suppose further that all of the circumstances of the statement are consistent with him really meaning it.  If the police go and arrest him for making criminal threats, and he says "oh, I was just kidding," is that a defense?  If the jury believes him, or if the prosecution is unable to disprove the claim beyond a reasonable doubt, does he walk?  Does the First Amendment require this result?  That is the issue before the United States Supreme Court in Elonis v. United States, No. 13-983.

News Scan

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U.S. Jails Releasing Illegal Immigrant Detainees: Jails across the country are no longer honoring federal requests to hold inmates for additional days while immigration authorities set up their deportation.  Cindy Carcamo of the Los Angeles Times reports that city and county jails across the U.S. began ignoring the holds after a series of federal court rulings issued this spring determined that immigration holds are no longer mandatory.  In California specifically, law enforcement agencies can only honor an immigration hold if the inmate has been charged with or is convicted of a serious offense.

Convicted Killer may Face Death Penalty: An Ohio jury is set to decide whether or not a 19-year-old convicted of murdering a U.S. Navy recruit should face the death penalty or not.  The Associated Press reports that if the jury decides to sentence Austin Myers to death, he will become the youngest inmate on the state's death row.  Myers was found guilty of murdering an 18-year-old Navy recruit in January after a burglary attempt.  Authorities later found the victim's body several counties away.

Woman Sentenced to Life for Quadruple Homicide: A Texas woman will spend the rest of her life behind bars after pleading guilty to helping her boyfriend murder two women and two children in 2010.  Lynh Bui of The Washington Post reports that 21-year-old T'keisha Gilmer blocked the door of one of the victim's apartments while her boyfriend shot all four of the victims execution style after a dispute occurred when a cooler full of marijuana went missing.  Gilmer's boyfriend was also convicted of first-degree murder and was sentenced to life in prison.  

First Monday in October

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Today is the official opening day of the U.S. Supreme Court's October 2014 term.  A long orders list, taking up no new cases, is here.  The cases taken up in the "long conference" last Monday were announced last Thursday, as previously noted on this blog.

Those of us who work at the Court from afar and can't attend the opening were greeted with a spiffy revamped web site.

Time and Again

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Opening its new term, the U.S. Supreme Court has once again unanimously chastised the notorious Ninth Circuit for once again ignoring the limits placed by Congress on its authority to second-guess reasonable decisions on debatable questions of law by the state courts with primary jurisdiction over a case.  The opinion begins (emphasis added):

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. ยง2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is "clearly established." See, e.g., Marshall v. Rodgers, 569 U. S. __, __ (2013) (per curiam) (slip op. at 6). Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.
The case is Lopez v. Smith, No. 13-346.

There is a broad spectrum of viewpoints on the Supreme Court today, but when there is not a single justice who thinks the court of appeals' decision is correct, when the error is so obvious that it doesn't even require full briefing and argument, and when the same pattern recurs "time and again," there is something gravely wrong with some of our courts of appeals (mostly those divisible by 3).

The continuing violation of this provision by some of the lower federal courts is the largest-scale defiance of federal law since the "massive resistance" campaign in the wake of Brown v. Board of Education (1954).  Except this time federal courts are perpetrators of the violations instead of enforcers of the law.

News Scan

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Nevada High Court Upholds Death Sentence: The Nevada Supreme Court has ruled in favor of upholding the death penalty for a California man convicted of murdering his wife in a Las Vegas hotel room in 2006.  Sean Whaley of the Las Vegas Review Journal reports that prosecutors allege that John Watson shot his wife before cutting her body up with a band saw.  In letters written from jail, Watson admitted to cooking and eating part of his wife's body, but police have yet to find any remains.  Watson challenged his sentence based on the claim that he suffered from mental illness.

Texas Man Sentenced to Life in Brutal Killing: A Texas man convicted of brutally murdering a woman and her one-year-old son in 2011 has been sentenced to in prison.  Annie Potasznik of CBS Dallas Fort Worth reports that 31-year-old Thomas Olivas brutally stabbed the woman before setting her apartment on fire with her infant son trapped inside.  Police believe the pair had a prior relationship and their was an argument concerning payment of child support.  Prosecutors chose not to seek the death penalty, resulting in an automatic sentence of life without parole.

Convicted Killer Won't be Granted Early Release: The man responsible for the brutal killing of a South Carolina high school student in 1995 will stay behind bars for another year despite an attempt made by the state to release him ahead of schedule.  John Monk of The State reports that 36-year-old Calen Radwell was a juvenile at the time of the killing and was sentenced to spend 20 years after pleading guilty to second-degree murder.  For reasons unknown the state's Corrections Department moved his release date up by almost a year leaving the victim's family outraged.  The judge ruled in favor of the victim's family, ordering that Radwell fulfill his entire sentence and be released in the fall of 2015.

NBC News reports:

An Oklahoma prosecutor filed notice Thursday to seek the death penalty against 30-year-old Alton Nolen, who's accused of decapitating one co-worker and stabbing another in a gruesome attack at a food-processing plant. The beheading of Colleen Hufford on Sept. 25 was "especially heinous, atrocious or cruel," Cleveland County District Attorney Greg Mashburn said in the filing. He added that "there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society."

Nolen, a convicted felon, faces a first-degree murder charge and two counts of assault for the stabbing rampage at Vaughan Foods in the Oklahoma City suburb of Moore. Authorities say he was on the warpath after getting suspended from his job at the plant. Earlier reports said he had been fired. The co-worker whom he allegedly stabbed, Traci Johnson, had earlier complained that she had an altercation with Nolen "about him not liking white people," Mashburn said. Nolen, who was injured by a plant executive's gun, was released from a hospital and transported to jail Wednesday.

It's hard to know where to start.  Why was this man out of prison?  Is Eric Holder going to send some of his staff to investigate the racial angle?  Are death penalty opponents going to publish a photograph of the headless victim along with their demands that we televise executions?

Good luck on getting answers.

News Scan

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Florida Man Convicted in 'Loud Music' Killing: A Florida man who shot into a car full of teens after getting into an argument over loud music has been found guilty of first-degree murder.  CNN reports that 47-year-old Michael Dunn shot 10 rounds into the vehicle, leaving 17-year-old Jordan Davis dead.  Dunn was found guilty on four charges related to the killing earlier this year but the jury deadlocked on whether or not he was guilty of murder.  Dunn is scheduled to be sentenced later this month on the first-degree murder conviction, he faces a mandatory sentence of life in prison.

Ohio Man Found Guilty in Quadruple Homicide: A 22-year-old Ohio man will now face a possible death sentence after being convicted of murdering four people in April 2013.  Adam Ferrise of the Northeast Ohio Media Group reports that Deshanon Haywood was convicted of several felonies including 13 counts of aggravated murder, four counts of kidnapping, and two counts of aggravated robbery in what authorities believe was a drug-deal gone bad.  Haywood is scheduled to be sentenced on October 14.  His co-defendant was also found guilty of murder and was sentenced to four consecutive life terms.

Child Rapist Sentenced to Life Behind Bars: A Georgia man convicted on four counts of aggravated child molestation will spend the rest of his life in prison after being sentenced to four consecutive life terms.  Tyler H. Jones of the LaGrange Daily News reports that Daryl E. McGruder repeatedly raped and sodomized two young girls over the course of several months. The judge presiding over the case is notorious for handing down harsh sentences for child predators. Last year, he sentenced a sex offender to 1,000 years in prison.  

The U.S. Supreme Court issued its short orders list from the "long conference" two days later than usual this year.  Among the cases taken up is Ohio v. Clark, No. 13-1352.  The Questions Presented are:

1. Does an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause?

2.  Do a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as "testimonial" statements subject to the Confrontation Clause.

Also granted is Rodriguez v. United States, No. 13-9972.  The Question Presented is:

This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are "de minimis" intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

News Scan

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California Teen Convicted in Brutal Double Murder:  A California jury has determined that a teenager convicted of murdering an elderly couple in 2013 was sane at the time of the crime.  News 10 Sacramento reports that 17-year-old Daniel Marsh broke into the couple's home in April 2013 and tortured the pair before stabbing them dozens of times.  Authorities say Marsh showed no remorse after his arrest and had even bragged to his friends about the killing.  Marsh faces a maximum sentence of life without the possibility of parole, the death penalty was not an option due to his age at the time of the crime.

Tennessee High Court Upholds Death Sentence: The Tennessee Supreme Court has unanimously ruled to uphold the death sentence of a man convicted of murdering six people in 2008.  Samantha Bryson of the Commercial Appeal reports that Jessie Dotson fatally shot his brother, his fiancee, and two other adults before stabbing and beating two young boys to death. Authorities say Dotson also stabbed his 9-year-old nephew in the head, but the young boy was able to survive along with two other children found at the scene.  Dotson was given six death sentences for each of his first-degree murder convictions and was also given three consecutive 40-year sentences for each attempted murder charge.

Convicted Killer to Stand Trial in Inmate Murder
: Prosecutors in Kentucky have announced that they will seek the death penalty against a man charged with murdering a fellow inmate at a high-security federal prison in 2009.  The Associated Press reports that 31-year-old John Millner allegedly stabbed another inmate with a homemade icepick before he strangling him to death.  At the time of the killing, Millner was serving a life sentence without the possibility of parole for a murder he committed in Washington in 2002.   

Good News on California Crime Rates

California property crimes per 100k population totaled 2,665.5 in 2013, a 3% drop from the 2012 figure although still above the rate before the realignment law went into effect.  Even better, the rate of violent crimes, less affected by that law, is down to a level not seen since 1967.  The California Attorney General released the annual Crime in California report September 26.

Comparison with national figures would be very interesting to help illuminate how much of this is local and how much reflects national trends, but the FBI still hasn't published the 2013 Crime in the United States.

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